The Shotgun Blog
Wednesday, May 06, 2009
Civil Forfeiture column
Here is my column on the recent Supreme Court decision to allow the state to seize your property if they suspect it of being the proceeds of a crime. It appeared in The Lawyers Weekly Vol. 28, No. 48 (May 1, 2009) (reprinted with permission):
We should all be alarmed by the latest pronouncement of the Supreme Court. The court authorized the seizure of property suspected to be the proceeds of an unlawful activity in a civil proceeding even though the person whose property was seized was never charged with, let alone convicted of, any crime in Chatterjee v. Ontario (Attorney General),  S.C.J. No. 19.
Protests that Ontario's civil forfeiture statute violated Charter rights were rejected by the Ontario courts, while the claim that the statute was ultra vires was also rejected by the Supreme Court. Civil libertarians, understandably, will be upset by this decision, but the blame lies more on those who drafted the Charter.
When the Charter was being contemplated, there was a conscious effort to exclude property rights. The fear was that enshrining property rights would allow the courts to strike down economic regulations, as had happened earlier in the United States. Those who omitted property rights from the Charter thought that they could achieve a social utopia where citizens were free from state tyranny in the civil rights sphere, and at the same time the state would be free to provide all an economic utopia. The opposite, however, has taken place. The Supreme Court allowed Mr. Chatterjee's cash to be confiscated, while it held in Chaoulli that Quebec's health care regime violated a patient's right to receive adequate treatment.
The state, frustrated in its move to combat certain regulatory crimes by the Charter's procedural safeguards, has decided to proceed through the backdoor of civil forfeiture. By defining its proceedings as civil in nature, it is able to bypass these frustrating niceties. Had there been adequate substantive safeguards built in against seizing one's property, however, the state could not have proceeded so backhandedly against Mr. Chatterjee.
Those who defend the statute argue that property unlawfully acquired was never legitimately the individual's property. Without bringing criminal charges, the state is able to seize property in a hearing sans jury and using a lower threshold of proof than a criminal trial. At common law, neither the Crown nor a private citizen could bring a proceeding against an individual to divest him of his possession without a trial by jury.
The statute, however, applies to more than just proceeds of crime. The statute also authorizes the seizure of vehicles that were or are "likely to be used to engage in vehicular unlawful activity." This is clearly punitive in nature, as there can be no argument that the owner of the vehicle never had a right to it in the first place. Also, if the property was used as an instrument of unlawful activity, the property could be seized even if it belonged to someone other than the one carrying out the crime. Innocent third parties have to show that they promptly notified the police, no matter what personal consequences may await them for doing so.
The worst part of this statute is that it changes the focus of policing. Instead of the state preventing crimes that have genuine victims, the state will become obsessed with seizing so-called proceeds of crime, especially in these recessionary times. Now that the Supreme Court has given the green light to these proceedings, expect the state to become very creative in how it defines the "proceeds of unlawful activity." For example, if a restaurant is operating in violation of a health or safety code, arguably, the establishment's earnings are now proceeds of an unlawful activity. Any minor technical violation of regulations can now result in forfeiture of assets.
One has to look no further than south of our border to see the abuses of civil asset forfeiture. There are counties that are legendary for stopping vehicles driving through and seizing any cash found on the driver. Usually, the targets of the seizures are members of vulnerable groups and are often unable or unwilling to contest the seizures in court. These abuses take place despite the presence of guarantees of property rights and trial by jury. It should be obvious that given the absence of these two safeguards here, the future is bleak.
One would have hoped in light of Chaoulli, that the court would examine the bona fides of the state's arguments for such statutes. Alas, this court has already weakened protections for property rights in Canadian Pacific Railway Co. v. Vancouver (City),  1 S.C.R. 227, 2006 SCC 5. Sadly, therefore, it looks like no relief is forthcoming. Canadians must, therefore, muster the will to seek legislative or constitutional changes to remedy the result in Chatterjee.
Posted by Moin A Yahya on May 6, 2009 | Permalink
Least we forget the exclusion of private property rights was at the demand of the NDP.
All citizens should be outraged by the court's ruling, because the key word is "suspected". Sadly people who support the "war on drugs" are willing to accept the ruling, believing it aids the war. No matter where we stand on the drug issue, we must realise how dangerous the ruling is, because being suspected of a crime, any crime, by the state should never be considered guilty.
Posted by: Alain | 2009-05-07 10:54:36 AM
Innocent until proven guilty? No just always guilty and waiting to be told so....by anyone in "authority". Oh Canada...Glorious and Free?
Posted by: JC | 2009-05-07 9:19:51 PM
We are fighting in other countries to bring THEM freedom ??. What a joke.
Posted by: peterj | 2009-05-07 11:17:54 PM
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